Divorce – Legal Framework

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Divorce – Legal Framework

Legal Grounds for the Dissolution of Marriage

In accordance with the Family Law of the Republic of Serbia, a marriage may be dissolved in one of the following ways:

• by the death of one spouse,

• by annulment of marriage, or

• by divorce.

Divorce

Divorce represents one of the most intense legal and emotional processes in an individual’s life.
The Family Law of the Republic of Serbia regulates the modes of marriage dissolution and distinguishes between:

• divorce by mutual consent, and

• divorce by lawsuit (contested divorce).

Each spouse has the right to initiate divorce proceedings if the marital relationship is seriously and permanently disrupted or if the marital union has ceased to exist in fact.
In this way, the Family Law provides relatively simple conditions for divorce — unlike many foreign legal systems that impose stricter requirements.

Divorce by Mutual Consent

When both spouses agree that the marriage should end, divorce can be achieved by mutual consent.
In that case, the spouses file a petition for divorce by mutual consent before the competent Basic Court.

Mandatory Elements of the Petition

In addition to a joint statement of consent to the divorce, the petition must include:

• an agreement on the exercise of parental rights – if the spouses have minor children,

• an agreement on the division of marital property – if joint property was acquired during the marriage.

The Agreement on Parental Rights Must Specify:

• which parent will exercise parental authority,

• the manner of maintaining personal relations with the child, and

• the amount and method of child support payments.

The court assesses whether the agreement is in the best interests of the child.
Parents may propose joint or sole exercise of parental rights.
If the petition is complete, divorce by mutual consent is usually concluded in one or two hearings.

Advantages of Divorce by Mutual Consent

• faster and more cost-effective procedure,

• possibility of precisely regulating property and family relations,

• reduced emotional and financial strain,

• preservation of correct and civil communication between former spouses.

Divorce by Lawsuit (Contested Divorce)

If the spouses cannot reach an agreement, either spouse may file a lawsuit for divorce.
The lawsuit is filed before the competent Basic Court having jurisdiction over:

• the defendant’s place of residence,

• the last common residence of the spouses, or

• the plaintiff’s residence (in exceptional cases).

Characteristics of the Divorce Procedure

1. Representation and Power of Attorney

If the lawsuit is filed by an attorney, the power of attorney must be notarized and must clearly specify the type and grounds of the lawsuit.
Such a special authorization is required for filing the initial act (the lawsuit), while for further procedural actions, an attorney may act based on a general power of attorney.
In matrimonial disputes, each spouse must have their own attorney, since the same attorney cannot represent both parties.

2. Mediation in Matrimonial Disputes

Upon receipt of the lawsuit, the court schedules mediation proceedings, unless one of the spouses expressly objects to mediation or if statutory reasons exist that prevent it.
Mediation consists of two segments:

• reconciliation – an attempt to preserve the marriage, and

• settlement – an attempt to reach an agreement on divorce.

Mediation Will Not Be Conducted When:

• one spouse does not consent to it,

• one spouse lacks mental capacity,

• the spouse’s residence is unknown, or

• one spouse resides abroad.

If one or both spouses fail to appear at the reconciliation session, it is deemed unsuccessful, and the procedure continues.
If they fail to appear for settlement, the proceedings continue as a contested divorce.

3. Parental Rights and the Best Interests of the Child

If the spouses have minor children, the divorce cannot be finalized without a decision on parental authority and child support.
The parents may reach an agreement on the exercise of these rights, or the court may decide, guided by the best interests of the child.

4. Specific Issues in Divorce Proceedings

During the process, numerous legal and factual issues may arise, often requiring the engagement of an attorney specializing in family and divorce law.
Common disputes include:

• the division of joint marital property,

• arrangements for maintaining personal contact with minor children, and

• determination of the amount of child support.

Additional complications may arise when the spouses are citizens of different countries, in which case the divorce and/or child support decision must be recognized and enforced abroad.

Conclusion

Divorce proceedings represent a sensitive intersection of family law and personal rights, requiring both legal precision and empathy.
Whether conducted by mutual consent or through a lawsuit, the process demands careful legal handling to ensure that the rights of all parties — and especially the interests of minor children — are fully protected.
For that reason, professional legal assistance is not only advisable but essential.

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